March 3, 2023 - On Monday, Associated Industries of Missouri (AIM) president/CEO Ray McCarty testified in favor of a bill that continues funding for programs within the Missouri Department of Natural Resources (MDNR) with an important caveat: AIM required the bill include important protections for regulated entities against punitive actions taken by MDNR based on guidance documents.
AIM has been working to reverse efforts of the MDNR to change regulations at the state level based solely on EPA guidance documents. For example, the MDNR started the process of enacting a regulation that would lower the allowable levels of around 700 chemicals based on EPA guidance documents. Such documents are advisory in nature. President Donald Trump issued an Executive Order that all guidance documents must contain a statement that such guidance documents were not to be relied upon by state or federal regulators or the regulated community; however, that Executive Order was repealed as one of the first acts of the Biden administration.
Why do we care? Guidance documents are simply memoranda issued by a government agency. Unlike a properly promulgated regulation upon which the public may comment, or a bill that is debated by elected representatives of the people and for which hearings are held, guidance documents are simply bureaucratic statements. That said, there are some guidance documents that are helpful to businesses. For that reason, we limited our prohibitive language to only guidance documents that are used in a punitive way.
Attorneys that are members of AIM's 76-member Environmental Committee worked with the MDNR on the final language that was adopted as part of the bill. The language reads:
"Notwithstanding any provision of law to the contrary, the department of natural resources shall not take any permitting or regulatory action based solely on guidance that has not been promulgated as a regulation, unless such use of guidance is agreed to by the permittee or person subject to such regulatory action."
The underlying bill, HB 779, extends the fee-setting process that allows stakeholders input regarding fee increases for an additional six years and ensures that the fees do not revert to 2013 levels. AIM supports the underlying bill with this protection language.
You may watch McCarty's testimony (7 minutes long) here. All witnesses testified in favor of the bill, none against. Associated Industries of Missouri was the only statewide general business group to support the bill, although the Missouri Retailers Association, Missouri Tire Industry Association, Missouri Limestone Producers Association, the American Council of Engineering Companies of Missouri, Missouri Society of Professional Engineers, two companies, the Missouri Department of Natural Resources and others supported the bill.
On Wednesday, the House Conservation and Natural Resources Committee passed the bill by a vote of 13-0. The bill will be reviewed by one additional committee before being considered by the full Missouri House of Representatives.